Before: Procter Hug, Jr., Chief Judge, Stephen Reinhardt and Barry G. Silverman, Circuit Judges.
The opinion of the court was delivered by: Hug, Chief Judge
Appeal from the United States District Court for the Eastern District of Washington Fred L. Van Sickle, District Judge, Presiding
Argued and Submitted April 8, 1998--Seattle, Washington
Opinion by Chief Judge Hug; Dissent by Judge Silverman
Appellant Leslie R. Weatherhead ("Weatherhead") appeals under the Freedom of Information Act ("FOIA"), 5 U.S.C. S 552. The request sought a letter from the British Foreign Office to the United States Department of Justice ("Justice") related to the extradition of Sally Croft and Susan Hagan. The United States Department of State ("State Department") withheld the letter under FOIA Exemption 1, which protects classified information from disclosure. 5 U.S.C. S 552(b)(1). The district court initially ordered the letter's disclosure. The government sought reconsideration of that decision, which the district court granted after conducting in camera review and concluding that the letter contained "highly sensitive and injurious material." We have jurisdiction under 28 U.S.C. S 1291, and we reverse.
On November 29, 1994, Weatherhead sent identical requests under FOIA to Justice and the State Department seeking a letter dated July 28, 1994 from the British Foreign Office to George Proctor, Director of the Office of International Affairs, Criminal Division, Justice. The letter was related to the extradition of two women, Sally Croft and Susan Hagan, from the United Kingdom to the United States to stand trial for conspiracy to murder the United States Attorney for Oregon. Croft and Hagan were members of the controversial Rajneeshpuram commune in Central Oregon in the 1980's. Believing that the letter contained an official British request that Justice take measures to avoid prejudice to Croft and Hagan in the district where the Croft case was pending, Weatherhead, the lawyer who represented Croft, intended to provide the letter to the district Judge presiding over the Croft case.
On May 4, 1995, the State Department wrote to say that it had been unable to locate the letter. Two weeks later, Justice reported that it had found the letter, but since it had been created by a foreign government, the letter was forwarded to the State Department's FOIA office for review and response. Weatherhead administratively appealed Justice's failure to produce the letter to Justice's Office of Information and Privacy, which remanded the matter so that the Criminal Division, in consultation with the State Department, could determine if the letter should be released. On August 4, 1995, the State Department sent a letter to the British government which stated that it had received a request for the letter, but "[b]efore complying with this request, [it ] would appreciate the concurrence of [the British] government in the release of the document" and to know if it wanted any portions of the letter withheld.
On October 18, 1995, the British government responded that it was "unable to agree" to the letter's release because "the normal line in cases like this is that all correspondence between Governments is confidential unless papers have been formally requisitioned by the defence." It continued, "In this particular case, requests from representatives of the defendants for sight of the letter have already been refused on grounds of confidentiality." The State Department classified the letter on October 27, 1995. On December 11, 1995, the State Department advised Weatherhead that it had concluded that the letter contained confidential information that was properly classified in the interest of foreign relations and therefore would be withheld under FOIA Exemption 1.
Weatherhead initiated a suit to compel production of the letter on November 17, 1995 and moved for summary judgment on February 16, 1996. The district court granted Weatherhead's motion for summary judgment, holding that the government failed to demonstrate that the letter was properly classified under Executive Order 12958. The government moved to set aside the judgment under Fed. R. Civ. P. 59(e). Even though it rejected most of the government's arguments for withholding the letter, the district court granted the government's motion for reconsideration.
The court chose to review the letter in camera out of concern that "highly sensitive and injurious material might be released only because defendants were unable to articulate a factual basis for their concerns without giving away the information itself." The court went on:
That proved to be the case. When the Court read the letter, it knew without hesitation or reservation that the letter could not be released. The Court is unable to say why for the same reason defendants were unable to say why. The letter is two pages long, tightly written, and there is no portion of it which could be disclosed without simultaneously disclosing injurious materials.
Thus, the district court concluded that the letter should be withheld and that Weatherhead would have to be satisfied with "the solace of knowing that not only do two high ranking [Department of State] officers believe disclosure of the subject material injurious ...